STEPHANOPOULOS (voice-over): Good morning, and welcome to THIS
WEEK. On this Memorial Day weekend, our exclusive headliner, the
military's top man.

MULLEN: I have actually been supportive of closing Guantanamo.

They want Afghanistan back. We can't let them or their al Qaeda
cohorts have it.

That Iran getting a nuclear weapon is calamitous for the region
and for the world.

STEPHANOPOULOS: The chairman of the Joint Chiefs, Admiral Mike
Mullen, only on THIS WEEK.

Then...

DICK CHENEY, FORMER VICE PRESIDENT: In the fight against
terrorism, there is no middle ground and half measures keep you half
exposed.

PRESIDENT BARACK OBAMA: We must leave these methods where they
belong, in the past. They are not who we are. And they are not
America.

STEPHANOPOULOS: Who won the great debate? Who is next for the
Supreme Court? That and the rest of the week's politics on our
roundtable with George Will, Donna Brazile, David Brooks of The New
York Times, and E.J. Dionne of The Washington Post.

And as always, the "Sunday Funnies."

JAY LENO, HOST, "THE TONIGHT SHOW": Hey, President Obama has
found a way to quickly close Guantanamo Bay. He's going to turn it
into a Pontiac dealership. Yes.

(LAUGHTER)

ANNOUNCER: From the heart of the nation's capital, THIS WEEK
with ABC News chief Washington correspondent George Stephanopoulos,
live from the Newseum on Pennsylvania Avenue.

(END VIDEOTAPE)

STEPHANOPOULOS: Hello, again, I hope you're enjoying this
Memorial Day weekend. We're going to begin today with the president's
top military adviser, Admiral Mike Mullen, the chairman of the Joint
Chiefs of Staff.

Welcome to THIS WEEK.

MULLEN: Thank you, George.

STEPHANOPOULOS: And we have a lot to cover today, but I want to
begin with the debate that really consumed Washington this week.
Guantanamo Bay, whether to close it, how to close it, what to do with
the detainees. Weigh in from the perspective of the U.S. military.

MULLEN: Well, I've advocating for a long time now that it needs
to be closed. President Obama made a decision very early after his
Inauguration to do that by next January. And we're all working very
hard to meet that deadline.

It focuses on very difficult issues of what you do with the
detainees who are there. There are some really bad people there. And
so figuring out how we're going to keep them where they need to be,
keep them off the battlefield, as well as close Gitmo itself is a real
challenge.

STEPHANOPOULOS: Let's talk about keeping them off the
battlefield, because a report -- a Pentagon report was released this
week -- or leaked this week that said about 14 percent of the
Guantanamo detainees have gone back to the battlefield.

I'm trying to puzzle that out. Does that mean it was a mistake
to let them go? Or that somehow they were radicalized inside
Guantanamo? That something happened to them there?

MULLEN: Well, there has been an increasing number of those who
have returned to the battlefield over the last year or two. There has
been hundreds and hundreds who have actually been released both from
Guantanamo over time as well as other detention facilities in Iraq and
in Afghanistan.

And I think individuals make their best judgment about where they
are. And certainly from a military perspective, my advice is to focus
heavily on making sure that these individuals don't return.

It has gone up in recent weeks -- or I'm sorry, in recent months,
from a single digit number of 5 or 6 percent to the low teens, as far
as my understanding of those who have returned.

STEPHANOPOULOS: For those detainees that have to come to the
United States eventually, if indeed they do, would the best option be
for them to be held in military prisons here in the United States?

MULLEN: We're working hard now to figure out what the options
are and what the best one would be. And that really is a decision the
president is going to have to make, certainly in meeting this deadline
of what we do.

But I just want to reemphasize how -- you know, the challenge
associated with that, the need to really keep the bad guys off the
battlefield, and to properly detain these individuals as determined in
this process.

STEPHANOPOULOS: But that is everybody's big concern, at least it
was expressed in the Congress this week that somehow detainees would
come to the United States and they would pose a danger. And the FBI
director, Robert Mueller, said this week they could pose a risk.

MULLEN: Sure. I listened to all of that and I thought Secretary
Gates also captured it well. We have terrorists in jail right now,
have had for some time. They're in supermax prisons. And they don't
pose a threat. So that's certainly an option. But again, it's not
one for me to decide.
STEPHANOPOULOS: The Republican leader of the Senate was quoted
in The New York Times today saying there's actually a very slim
possibility now that the Congress will allow Guantanamo to close.

If he's right, and Guantanamo doesn't close, what would that mean
for your military mission?

MULLEN: Well, the concern I've had about Guantanamo in these
wars is it has been a symbol, and one which has been a recruiting
symbol for those extremists and jihadists who would fight us. So and
I think that centers -- you know, that's the heart of the concern for
Guantanamo's continued existence, in which I spoke to a few years ago,
the need to close it.

STEPHANOPOULOS: You know, former Vice President Cheney took on
that debate this week. He was speaking about Guantanamo, but also
specifically the enhanced interrogation techniques, and he took on
this issue of what he called the recruitment tool mantra. Take a
listen.

(BEGIN VIDEO CLIP)

CHENEY: This recruitment tool theory has become something of a
mantra lately, including from the president himself. And after a
familiar fashion, it excuses the violent and blames America for the
evil that others do. It's another version of that same old refrain
from the left, we brought it on ourselves.

(END VIDEO CLIP)

STEPHANOPOULOS: He's taking issue with your judgment.

MULLEN: Well, again, it's my judgment that it has had an impact.
And it's time to move on. And the difficulty of doing that is
captured in the complexity of the issues. But I think we need to.

STEPHANOPOULOS: Let me move on to the issue of Iran. You said
that Iran is on a path to building nuclear weapons. But the 2007
National Intelligence Estimate concluded with a high degree of
confidence that Iran had halted its nuclear weapons programs. So do
you believe that intelligence estimate is outdated? Is it no longer
accurate?

MULLEN: Well, I believe then and I still believe that Iran's
strategic objective is to achieve nuclear weapons, and that that path
continues. Their leadership is committed to it. They conducted a
missile test this last week that was successful, which continues to
improve their missile delivery system and capability. Their intent
seems very clear to me, and I'm one who believes if they achieve that
objective, that it is incredibly destabilizing for the region. And I
think eventually for the world.

STEPHANOPOULOS: You said it's their intent. But do you believe
they've restarted their actual nuclear weapons program?

MULLEN: I haven't seen -- or I wouldn't speak to any details
about what they are doing with respect to that. Although, I remain
concerned that while intelligence estimates focus on what we know, I'm
concerned about what Iran might be doing that we don't know.

STEPHANOPOULOS: Let me also press the question of their
strategic intent. "Newsweek" has a cover story out. Let me show you.
It says that everything you think you know about Iran is wrong. And
one of the points that Fareed Zakaria makes in "Newsweek" is he points
out on several occasions over the last several years, Iran's leaders
have said they're not interested in having nuclear weapons. They have
said that nuclear weapons are immoral. The Supreme Leader, Ayatollah
Khamenei actually issued a fatwah saying that these weapons are,
indeed, immoral.

And I guess, it's possible they could just be lying. But it does
seem odd that a country that the Islamic Republic that bases its
legitimacy on being a guardian of Islam that would develop weapons
that it considers immoral. That would seem to undercut their own
legitimacy.

MULLEN: Well, I think that speaks to the importance of the
dialogue that President Obama has stated he wants to initiate and to
really wring out, whether that's how the Supreme Leader feels.
Certainly from what I've seen, Iran on a path to developing nuclear
weapons.

STEPHANOPOULOS: So you don't believe it? That they don't want
nuclear weapons.

MULLEN: At this point no.

STEPHANOPOULOS: And the chief of staff to Israel's defense
minister, General Michael Herzog, has said that Iran could actually
have its first nuclear weapon by the end of 2010 or the beginning of
2011. Do you agree with that?

MULLEN: Well, I think you make certain assumptions about what
they can do. Most of us believe that it's one to three years,
depending on assumptions about where they are right now. But they are
moving closer, clearly, and they continue to do that. And if you
believe their strategic intent, as I do, and as certainly my Israeli
counterpart does, that's the principle concern.

STEPHANOPOULOS: And you just said that you believe that a
nuclear Iran would be calamitous for the region. But last year, Sy
Hersh in the "New Yorker" reported that you pushed back very hard
against any notion of a military strike during President Bush's
administration. And you've spoken publicly about the unintended
consequences of a military strike by Israel. So what worries you
more? A nuclear Iran or war with Iran?

MULLEN: Well, they both worry me a lot. And I think the
unintended consequences of a strike against Iran right now would be
incredibly serious. As well as the unintended consequences of their
achieving a nuclear weapon.

And so that's why this engagement in dialogue is so important. I
think we should do that with all options on the table. As we approach
them.

And so that leaves a pretty narrow space in which to achieve a
successful dialogue and a successful outcome, which from my
perspective means they don't end up with nuclear weapons.

STEPHANOPOULOS: They don't end up with nuclear weapons, but
could they have as Japan does a full nuclear fuel cycle program that's
fully inspected?

MULLEN: I think that's certainly a possibility and this isn't,
at least, from my perspective, from the military perspective, this
isn't about them having the ability to produce nuclear power. It's
about their desire and their goal to have a nuclear weapon.

STEPHANOPOULOS: Finally, if it comes to this, do you believe
it's possible to take out Iran's program, militarily at an acceptable
cost?

MULLEN: I won't speculate on what we can and can't do. Again, I
put that in the category of my very strong preference is to not be put
in a position where we -- where someone -- where Iran is struck in
terms of taking out its nuclear capability.

STEPHANOPOULOS: OK. Let me move to Iraq then. U.S. combat
forces are scheduled to complete their pullout from Iraqi cities by
June 30th. But in recent weeks, we've seen an uptick again in the
violence. Does that rise in violence mean that the deadline for
pulling American forces out of the cities might not be met?

MULLEN: Oh, I think we're still very much on a track in terms of
pulling the forces out of the cities, which is the end of next month.
We're on track to decrease the number of troops down to 35,000 to
50,000 in August of 2010.

We've had an uptick in violence, but the overall violence levels
are at the 2003 levels. It's still fragile. There's an awful lot of
political positioning and political debate that's going on right now,
and I think that in great part becomes the essence of how Iraq moves
forward.

I'm actually positive about what the Iraqi security forces have
done, their army and their police in terms of providing for their own
security. They've improved dramatically.

So the path, I think, is still the right path. These ticks,
upticks in violence are going to occur. We said that going in, even
into -- as we talked about coming down in force. So we just have to,
we have to constantly keep an eye on that.

Al Qaida is still active. They're not gone. They're very
much...

STEPHANOPOULOS: Al Qaida in Iraq.

MULLEN: Al Qaida in Iraq is very much diminished, but they still
have potential to create these kinds of incidents.
STEPHANOPOULOS: And the president has said that his overall goal
is to have all forces out of Iraq by 2011.

(BEGIN VIDEO CLIP)

OBAMA: Under the status of forces agreement with the Iraqi
government, I intend to remove all U.S. troops from Iraq by the end of
2011.

(END VIDEO CLIP)

STEPHANOPOULOS: That is pretty unequivocal. Yet I was reading
the proceedings of the U.S. Naval Institute. They had an interview
with Tom Ricks, the U.S. military historian, where he says he worries
that the president is being wildly over-optimistic. He says we may be
only halfway through the war. And he talks about a conversation he
had with the commanding general in Iraq, General Ray Odierno, who told
him he'd like to see 35,000 troops in Iraq in 2015. Is that what you
expect, as well?

MULLEN: Well, certainly the direction from the president and the
status of forces agreement that we have with Iraq right now is that we
will have all troops out of there by the end of 2011. And that's what
we're planning on right now.

STEPHANOPOULOS: But can Iraq be safe with all U.S. troops out of
Iraq in 2007 (sic)?

MULLEN: Well, we're on a good path now. And we'll have to see.
I mean, the next 12 to 18 months are really critical there in that
regard, and I think that answering that question will be much clearer
given that timeframe.

The other thing is, we have -- this is a long-term relationship
we want with Iraq, and Iraq has stated they want with the United
States. And part of that is the possibility that forces could remain
there longer. But that's up to the Iraqi people and the Iraqi
government to initiate discussions along those lines, and that hasn't
happened yet.

STEPHANOPOULOS: It's up to the Iraqi people and the Iraqi
government. It's up to the president, of course, as well. But from a
military perspective, General Odierno says that he would like to see
35,000 troops in 2015. Is that what you all believe is necessary to
secure Iraq from a military perspective?

MULLEN: There's no definitive number right now beyond the end of
2011.

STEPHANOPOULOS: But it's not zero?

MULLEN: Well, I mean, when I'm engaged in other countries around
the world, I have very small footprints of military personnel in that
engagement. You know, and I would hope long-term, that we would have
a great military-to-military relationship with Iraq.

STEPHANOPOULOS: That could include U.S. troops there?

MULLEN: Well, I mean, we've got small numbers of troops
throughout the world that conduct training activities, exercises, and
those kinds of things. So long-term in Iraq, I would look to be able
to do something like that.

STEPHANOPOULOS: We're also increasing our troop presence, of
course, in Afghanistan, and that's raised a lot of concern in the
Congress recently. Some members of Congress -- leading members of
Congress, like Dave Obey, the chairman of the Appropriations
Committee, saying he's willing to support funding now, but he's only
going to give you a year to show progress.

Here's also what Congressman Jim McGovern of Massachusetts said
on the floor.

(BEGIN VIDEO CLIP)

REP. JIM MCGOVERN (D), MASSACHUSETTS: I'm not advocating for an
immediate withdrawal of our military forces from Afghanistan. All I'm
asking for is a plan. If there is no military solution for
Afghanistan, then, please, just tell me how we will know when our
military contribution to the political solution has concluded.

(END VIDEO CLIP)

STEPHANOPOULOS: That's a great question. How will we know when
the military contribution has been successful?

MULLEN: Well, I think as we move more forces into Afghanistan
this year -- literally, we're doing that as we speak -- that's
absolutely necessary to provide to turn the security situation around.

But the military solution is not enough. We've got to have
government, governance capability increase dramatically. We've got to
have development, economic development. We need more civilians from
our government and civilians from other agencies and other countries,
as well.

So it's the three-legged stool. It's development, it's rule of
law and governance, as well as security. And I think not unlike Iraq,
we get security to a point where these other -- these other aspects
can be developed much more fully, and we'll know at that point in time
how far we've gone and what our next step should be.

STEPHANOPOULOS: Specifically, what can be achieved in the next
year?

MULLEN: I think with the troops that we put on the ground there,
that over the next 12 to 18 months, we have to dramatically change the
security situation and stem the tide. We've had an increasing level
of violence in the last three years from in '6, '7, and '8, and I
think in '9 and '10, we have to start to turn that around.

STEPHANOPOULOS: Let me talk about the issues of gays in the
military. The president has told you that he wants to repeal the
"don't ask, don't tell" policy so that gays and lesbians can serve
openly in the military. And the Pentagon said this week that you
personally, along with Secretary Gates, are working to address the
challenges associated with implementing the president's commitment.

What exactly are you doing? And what exactly are you worried
about?

MULLEN: The president has made his strategic intent very clear.
That it's his intent at some point in time to ask Congress to change
this law. I think it's important to also know that this is the law,
this isn't a policy. And for the rules to change, a law has to be
changed.

STEPHANOPOULOS: And there's legislation introduced in the
Congress.

MULLEN: And there is. Exactly. And so I've had discussions
with the Joint Chiefs about this. I've done certainly a lot of
internal, immediate staff discussions about what the issues would be
and how we...

STEPHANOPOULOS: What are they? What are the challenges?

MULLEN: Well, it's my job as the senior military adviser to
provide best advice, best military advice for the president. And what
I owe him is an objective assessment of what these changes would be.
What they might impact on. And there could be speculation about what
that might be, but my goal would be to achieve an objective assessment
of the impact, if any, of this kind of change.

In addition, you know, I would need some time for a force that's
under a great deal of stress -- we're in our sixth year of fighting
two wars -- to look at if this change occurs, to look at implementing
it in a very deliberate, measured way.

And what I also owe the president, and I owe the men and women in
uniform, is an implementation plan to achieve this based on a timeline
that would be set, obviously, after the law is changed.

STEPHANOPOULOS: One of your predecessors, General John
Shalikashvili, who was the chairman of the Joint Chiefs back in the
early '90s, has said he has second thoughts on this whole issue now.
He was against opening up service to the gays and lesbians then. Now
he's written, "I now believe that if gay men and lesbians served
openly in the United States military, they would not undermine the
efficacy of the armed forces. Our military has been stretched thin by
our deployments in the Middle East, and we must welcome the service of
any American who is willing and able to do the job."

Is he right?

MULLEN: He's certainly entitled to his own personal opinion.
And certainly, I have the greatest respect for him.

There are also lots of retired generals and admirals on the other
side.
STEPHANOPOULOS: What's your opinion?

MULLEN: And what I would hope to do in this, George, again,
given the strategic intent of the president, is to avoid a polarizing
debate that puts a force that's very significantly under stress in the
middle. And to get this, get to this, assuming the law is going to
change, and, again, a measured, deliberate way. And that, as the
senior military leader, is what I consider my principal
responsibility.

STEPHANOPOULOS: Measured, deliberate way. So it sounds like if
the Congress calls you up to testify in this, you're going to say now
is not the time to repeal?

MULLEN: No, I actually -- I'm going to talk to the process that
we have in this country, which is we follow the law, and if the law
changes, we'll comply. There's absolutely no question about that.

STEPHANOPOULOS: We have a couple of minutes left. I want to ask
you about working with President Obama as the commander in chief.
You've been doing it for about four months now, a little bit more than
four months. What have you learned about the president as commander
in chief? And is he performing as you expected?

MULLEN: It's very rare with any kind of major issue that the
president doesn't initially ask, OK, where are we going here? What's
our end stake? And then developing a strategic view of how to get
there and the major pieces with respect to that. That he is
developing policies and policy objectives that the military can
support, and the policy and the strategy are very clear.

And I'm not a policy and a strategy guy. I'm -- you know, the
military basically supports what the president wants, the decisions
that he makes. And he has done that, he has done that in Iraq, he has
done that in Afghanistan and in Pakistan. And I find that to be -- to
be a method that gives the military the kind of focus it needs for
where we're going.

STEPHANOPOULOS: Has he surprised you in any way?

MULLEN: No, not really. I mean, I met him before the -- I think
a week or so after he was elected. We had very frank conversations
about our positions on various issues, in terms of how we saw things.
He was very clear about what he wants to do.

He's a very bright, focused individual. He takes a diversity of
opinion, and then he is -- he is as every president is, you know, he
knows he has to make decisions. He has made them, he has made hard
ones, and I think he will continue to do so.

STEPHANOPOULOS: Finally, as you pointed out, the military has
been under tremendous stress for the last eight years. Families have
been separated again and again. The suicide rate has risen pretty
dramatically in the military.

What do you want on this Memorial Day weekend? What do you want
Americans to know about what the military is going through? And what
do you want them to reflect on?

MULLEN: Well, we do have a force that's pressed very, very hard.
That said, they're the best military I've ever been associated with in
my 41 years of wearing the uniform. They have performed incredibly.
I would like America to remember those who have served and those that
we've lost and their families.

I would like to -- there's tremendous resolve in our military.
We're fighting two wars, and the goal to win and succeed in these wars
is resonant throughout our military and the capability to do that.
And that we -- and that we are resolved as a country to support those
who have given so much. Those who have fallen, families of the
fallen, and those who have been wounded.

And communities throughout the land reach out to these young
people who have gone forward, sacrificed greatly, and have rich lives
that they look forward to even though their path on getting there may
have changed because they've been wounded, injuries seen and unseen.

But they're great Americans, and we need to take care of them.

STEPHANOPOULOS: And we will remember all of that tomorrow.
Admiral Mullen, thank you very much.

MULLEN: Thank you, George.

STEPHANOPOULOS: The roundtable is next with George Will, Donna
Brazile, E.J. Dionne, and David Brooks.

And later, the "Sunday Funnies."

(BEGIN VIDEO CLIP)

DAVID LETTERMAN, HOST, "THE LATE SHOW": The speech went over
pretty well. I mean, Cheney was interrupted five times by applause
and 50 times by people screaming, stop, I'll tell you everything!

(LAUGHTER)

(END VIDEO CLIP)

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

OBAMA: I want somebody who obviously has a clear sense of our
Constitution and its history and is committed to fidelity to the law,
is going to make their decisions based on the law that's in front of
them. What I want is not just Ivory Tower learning. I want somebody
who has the intellectual firepower but also a little bit of a common
touch and has a practical sense of how the world works.

(END VIDEO CLIP)

STEPHANOPOULOS: President Obama laying out a little more detail,
what he's looking for in a Supreme Court justice. That was to Steve
Scully of C-SPAN on Friday. Here to talk about it on the "Roundtable"
I'm joined as always by George Will, David Brooks of "The New York
Times," E.J. Dionne of "The Washington Post" and welcome back to Donna
Brazile.

And George, the thing about the president's qualifications are
they could apply to just about anyone on his supposed short list.
Let's show the viewers the short list right now. Getting the most
scrutiny from the White House. Elena Kagan, former dean of Harvard
Law School. Judge Sonia Sotomayor of the 2nd Circuit Court of Appeals
up in New York. She would of course be the first Latina justice on
the court Judge Diane Wood out of Chicago and the Appeals Court of
Chicago and also taught with President Obama at the University of
Chicago Law School. George, all three of those candidates have
already drawn a lot of fire from conservatives.

GEORGE WILL, ABC NEWS: If he picks Sotomayor, he'll be in the
awkward position, I think, of having her hearings begin in July and
she having just been overturned on an important case, the New Haven
firefighters affirmative action case. Let me just set the scene by
saying what worries me about what he said and what worries me about
what the conservatives are saying. He has said the court has to stand
up if no one else will. Now, that's a view of the court that if the
political system is failing to solve social problems, the court must
do it in its unresponsive and hence more liberated exercise of power.

He's also said he wants justices with a broad vision of what
America should be. Combing those two you have approximately the way
Justice Taney decided the Dred Scott case. He said, I have a vision
of America in which black people have no rights that whites are bound
to respect. And I am going to solve the secession crisis because no
one else will.

Now conservatives are saying we don't want activist judges, we
want judges who will defer to the political branches of government.
The problem is the worst case since Dred Scott arguably was deferring
to Franklin Roosevelt as a wartime leader in interning 110,000
Japanese-American citizens. The case that offends most conservatives
recently came out of New London, Connecticut, wherein the
democratically elected City Council using its eminent domain power
took property away from people, gave it to businesses because they
would pay higher taxes and that was deference again. What the
conservatives really wanted in both cases was more activism.

STEPHANOPOULOS: You've given so much to chew on. Let's start
with the first part first. Your take on the president. Because I saw
both Donna and E.J.'s eyebrows raise as you started to talk about the
president. Donna, you go first.

DONNA BRAZILE, DEMOCRATIC STRATEGIST: I think the president is
looking for somebody with a sharp legal mind but also someone who
understands how the law applies to everyday people in their struggle.

STEPHANOPOULOS: And there's nothing wrong with that.

BRAZILE: Absolutely nothing wrong with that. I mean all you
have to do is look back at the Lily Ledbetter case to understand you
want someone who understands the law but how it applies to people in
everyday life. Here's Lily Ledbetter working for 20 years not knowing
she's underpaid and the Supreme Court basically looked at her case and
said, it's your fault you didn't know that you were being underpaid,
so I think he is looking for someone who can both crystallize the law
but understand how it applies to everyday people.

DAVID BROOKS, "NEW YORK TIMES": Well, I would say first we want
somebody with reverence to the Constitution. And I think that's what
George is getting at. It's not a question of how powerful or
unpowerful, we want somebody with reverence for that document. I
think we're going to have a big fight here. Because what we know
about what President Obama wants? He believes that John Roberts is
much more conservative than he led on at his hearings, he thinks John
Roberts is much more aggressive especially on civil rights issues like
Lily Ledbetter than people are aware so he wants someone who is a
powerful counterforce like Sonia Sotomayor. So I think that issue
which brings in the New Haven firefighters case which they studied
hard for a test, passed the test and that had the results of that test
overruled ...

STEPHANOPOULOS: The test was ruled invalid.

BROOKS: Invalid because not enough minorities also cleared that
bar. That is going to set up a big fight. As I talked to senators,
Republican senators right now, they don't want a fight but I think
they're going to get dragged into it.
STEPHANOPOULOS: They want a debate but not necessarily a fight.
And E.J., your top candidate, you think is someone who can actually
bridge the differences.

E.J. DIONNE, "WASHINGTON POST": I think Elena Kagan who is
solicitor general has a couple of advantages. One is she's been
vetted and confirmed. Seven Republicans have already voted for Elena
Kagan when she came up and she's someone who is on the liberal or
progressive side but showed up at Harvard when she was dean that she
could work with conservatives and I think Obama wants somebody who
could persuade people on that court the way Justice Brennan did but
I'm so glad that George raised the Dred Scott case which surprised me
because that is a clear example of conservative judicial activism gone
wild and I think that is precisely what the issue here is going to be
in this debate. And I think it's totally legitimate for the
Republicans to make a philosophical argument here. I hope we have
that argument.

STEPHANOPOULOS: Well, you know, you're right. What they're
arguing is that the Senate Democrats and President Obama actually gave
up the idea that the Senate should just approve someone if they have
the qualifications and temperament back in 2005 when opposed Roberts
and Alito. And George, I do think that means that David is probably
right. That we're likely to see a big fight no matter who President
Obama appoints even though not only Elena Kagan got support from
Republicans but both Judge Sotomayor and Judge Wood when they were
raised to the Appeals Court received overwhelming support from both
parties.

WILL: You'll see a big argument, but it is a foregone conclusion
that will lack comic relief because Joe Biden is no longer on the
Judiciary Committee and can't ask as he did of Alito an eight and a
half-minute question, but I don't -- everyone knows that whoever he
picks, unless they haven't paid their baby-sitter taxes is going to be
confirmed.

STEPHANOPOULOS: That's right. And the question is, what is --
what points do the conservatives make in this debate?

BROOKS: Right, well, I think -- say it's Sotomayor to take an
example. But there are lots of cases that will follow this model.
They hit that New Haven firefighters case and the to these guy, one of
them had dyslexia, studied hard, passed the test, it's unfair. That
is a very principled argument that Republican are going to make. In
so doing probably alienating large parts of the minority population,
especially the Hispanic population in this country. And that is the
weakness he will exploit.

STEPHANOPOULOS: That is another argument in favor of Sotomayor,
is the first Latina. Hispanics are the fastest-growing voter group in
the country.

BRAZILE: Grew up in public housing -- you know, a graduate of
some of the best schools in the country.

As someone who has not only taken on affirmative action but so
many other important issues that this country will face, I think she
would make an excellent choice.

But, you know, the conservatives, at this point, need arguments.
They want -- they want to fight. They want to raise money. They want
to rally their base. And I don't see them making a big intellectual
argument against any of these candidates, except that they might find
some issue to go out there and throw red meat at their party's
disgruntled base.

DIONNE: You know, and I think they've got a problem, which is
they do need to make a principled argument. They do need to rally
their base. The voters they've been losing ground among are middle-
of-the-road young, suburban voters. They don't want a hard-right
Republican Party.

So it's going to be interesting as to how they frame this. But I
think Obama would welcome another fight, which is a fight about
empathy.

(LAUGHTER)

I think that, if the Republicans want to cast themselves as
opponents of empathy, that would be a very interesting argument.

(LAUGHTER)

(CROSSTALK)

STEPHANOPOULOS: George, go right ahead.

WILL: Well, I actually don't think empathy is -- is the test.
In fact, I think it can be a judicial defect. We all are familiar
with, and are going to hear over and over again, the famous story of
Justice Holmes leaving lunch with Learned Hand. Learned Hand says,
"Mr. Justice, do justice." Justice Holmes stopped his carriage and
said to Learned Hand, "That's not my job, to do justice. My job is to
apply the law."

(LAUGHTER)

DIONNE: And if reading the Constitution were like reading a
cookbook, we wouldn't have so many 5-4 decisions.

(LAUGHTER)

BROOKS: If I could just speak up for the Oprah wing of the
conservative movement...

(LAUGHTER)

... I am, sort of, pro-empathy. I don't think we can have
automatons. I don't think there are automatons in the universe.
People make decisions based on emotional reactions, even people
wearing black robes.

And to me, the Republican Party would be in a lot stronger
position if they framed the argument -- say it's on civil rights --
this way. We can either lower the standards for some groups or we can
empower people to meet those standards through education, through 8
million policies I've already -- already suggested.

The problem is the Republicans haven't suggested those policies.
They haven't talked about ways to get groups up so they can meet all
these, say, firefighter standards.

WILL: Let's also remember that the presidents have to be
surprised by whomever he appoints. Roosevelt was chagrined by the
results of appointing Felix Frankfurter. David Souter, who this
person is replacing, was certainly a surprise to the conservatives.
Harry Truman when, in the steel seizure case, two of his appointees
ruled against him, said, when you appoint a man to the Supreme Court,
you lose a friend.

STEPHANOPOULOS: You know, I wonder if that's...

(CROSSTALK)

STEPHANOPOULOS: ... if that's no longer true.

(CROSSTALK)

WILL: Because of the thoroughness?

STEPHANOPOULOS: Because of the thoroughness of the vetting
process.

WILL: Could be.

STEPHANOPOULOS: You've seen the last four -- the last four
appointees, both Democrat and Republican, have performed pretty much
according to form.

Let's switch subjects, right now, to the big debate of the past
week, President Obama up against former Vice President Dick Cheney.

And it seemed like the parties were really maneuvering for
political advantage this week, as well, the president trying to seize
back the debate.

And by the end of the week, both parties had put out ads, the
Republican Party and Democratic allies also putting out an ad on
behalf of the president.

(BEGIN VIDEO CLIP)

ANNOUNCER: To close it, to close it not.

WHITE HOUSE PRESS SECRETARY ROBERT GIBBS: We've made some hasty
decisions.

ANNOUNCER: Last week, President Obama and the Democrats in
Congress cracked down on credit card abuse. Congress said no to the
bank lobby and yes to consumers. To their credit, Congress is finally
getting the idea.

(END VIDEO CLIP)

STEPHANOPOULOS: That last ad from the group called Americans
United. And, Donna, Democrats were pretty frustrated this week. That
credit card bill passed. This hardly gets any attention, given this
national security debate. And Republicans on Capitol Hill and around
the country seem pretty happy that they were front and center with
their national security arguments this week.

BRAZILE: I think the Democrats should have known that the
Republicans were going to use the entire issue of Gitmo Bay to -- to,
sort of, put the Democrats on the defense.

We saw it in the House and then, every day, McConnell went out
there, the minority leader, and hammered the president: no plan, no
plan, where is the plan? And clearly the Democrats were caught
without a plan, as something to say, hey, we have a response to this.

So the president was forced to go out there and regain the moral
higher ground. But the Democrats really can go home this week and
tell the American people that they are still dealing with the economy,
dealing with the issues that they care about. Meanwhile, the
Republicans are looking for distractions. And, clearly, this week the
Republicans found something to chew on.

BROOKS: You know the old line that, when two guys fight over a
girl, it's the fight they want, not the girl.

(LAUGHTER)

That's what this week reminds me of. We have a bipartisan anti-
terror policy in this country. If you take the anti-terror policy of
the last four years of the Bush administration and stack it up with
the first four months of the Obama administration, you have the same
policy, with some adjustments on renditions, on secret prisons, on
habeas corpus, even on Gitmo.

STEPHANOPOULOS: President Bush said he wanted to close
Guantanamo, just didn't have a plan.

BROOKS: Right. And Condi Rice and people in that administration
went around Capitol Hill, went to country after country saying, we
want to close Gitmo, please take the prisoners. It never occurred to
them they could announce the closure first and then figure out what to
do with the prisoners later.

It's the same policy. So buy nobody can admit that. Dick Cheney
wants to pretend Obama has changed the policy and is making us unsafe.
Obama wants to pretend he changed from the dark days of the Bush
administration. It's the same policy.

WILL: Whereas the truth is, according to Professor Goldsmith,
worked in the Bush administration, objected successfully to many of
the Bush administration policies, he says the following.

"The new administration has copied most of the Bush anti-
terrorism program, has expanded some of it and has narrowed only a
bit. Almost all of the Obama changes have been at the level of
packaging, argumentation, symbol, and rhetoric."

STEPHANOPOULOS: And White House does not like this argument at
all, but when you look at keeping preventive detention, restoring
tribunals, although a revised form of them, blocking the release of
the photos, there are a lot of similarities.

WILL: Rendition.

DIONNE: You know, I think it's worth remembering that Bush
changed his policy after three Supreme Court decisions.

But I think the White House was really sending out two signals to
different groups. They wanted -- they're trying to split the right
and I think they succeeded in doing that. You have got moderate
conservatives like David saying really this is more like the Bush
policy, this is a good thing. And then you've got the Cheney
conservatives on the other side.

And I think Cheney did Obama a huge favor by showing up because
civil libertarians and liberals have some real problems with some of
these policies, the idea of unlimited detention in a constitutional
republic without any due process is a real problem.

And I think Obama is going to have to revisit that. He argues
and he has got a point that there are some people who can't be tried
and can't be released. Nonetheless, this is not POWs in a normal war.

No one is going to come out and say, of the war on terror,
"mission accomplished" any time soon. And I think that issue still
sits out there for not just the left, as people say, but a lot of
moderate civil libertarians.

STEPHANOPOULOS: Well, meanwhile, (INAUDIBLE) that seems to unite
right and left, Donna, at least in the Senate, is the issue of
bringing detainees here to the United States. The president began to
make the argument on Thursday, hey, wait a second, we have got
hundreds of terrorists in prisons here in the United States, in
supermax prisons, yet it was a real rebuke from Senate Democrats, 90-
6. And this is going to be tough to turn around.

BRAZILE: Well, George, they were caught off-guard. They didn't
have a strategy to say, wait a minute, we have a detailed plan of how
we're going to deal with these prisoners. By the way, who are these
prisoners? What's the crime? Will they be charged? Will they not be
charged?
And then, of course, we have the chorus coming from the right
saying -- you know, especially the talk show populists saying not in
my backyard. And now they're even having "Club Gitmo" T-shirts. So
people are...

(LAUGHTER)

BRAZILE: By the way, they probably don't come in extra large, so
I won't be wearing one. But people are out there now, you know,
basically going back into campaign mode. And this is all about a
serious plan that the president needs to come up with, what to do with
these prisoners.

DIONNE: A friend gave me a solution to this last night,
California needs a bailout. And none of the states want the Gitmo
prisoners. California agrees to take all of the prisoners and then it
gets its bailout.

BROOKS: Hotel Bel Air.

(LAUGHTER)

(CROSSTALK)

WILL: California is going to release prisoners.

(LAUGHTER)

BRAZILE: To save money.

STEPHANOPOULOS: I want to get to California in one second, but
let me just first ask, David, one more question. You point out this
was a bipartisan policy. Guantanamo was a bipartisan policy. How
does the president get John McCain, Lindsey Graham, other Republicans
back on board to bring detainees into the United States?

BROOKS: Well, he has quoted them quite liberally in order to
support that policy. The NIMBY issue is just a tough issue. My sense
from the White House is they've written off that issue. They're going
to find some way to have a Guantanamo 2. It won't be called
Guantanamo...

STEPHANOPOULOS: Maybe build a military prison here in the United
States.

BROOKS: Build something else here. But his essential problem is
he's running a moderate George H.W. Bush foreign policy and he can't
admit it to his own base. He had better start.

STEPHANOPOULOS: OK. Let's move on to California then. This is
another tough issue for the president right now. California, $21
billion deficit. Could run out of money in July. Has already asked
the federal government for some loan guarantees. President Obama in
that C-SPAN interview said no. So did Tim Geithner, the treasury
secretary, when he was up at Congress this week.

But when he was finally asked, are you going to rule out
assistance, here's what he said.

(BEGIN VIDEO CLIP)

TIMOTHY GEITHNER, TREASURY SECRETARY: We will have to do
exceptional things as we have done already to fix this mess. That's
not putting on the table or taking off the table any specific thing
like that. But I just want you to know that there are things that
we've had to do I would never have contemplated doing.

(END VIDEO CLIP)

STEPHANOPOULOS: So let me put up for -- to remind everyone,
1975, the famous Daily News cover, Gerald Ford to New York City: drop
dead, I think it's going to come up right there.

"Ford to City: Drop Dead," and, George, I'm reminded that a month
later Gerald Ford approved loan guarantees for New York. Is that what
we're going to see here with California?

WILL: I certainly hope not. Mr. Geithner did say it's a mess
and we are going to fix it. No, it seems to me they've...

STEPHANOPOULOS: Ruled out TARP money, though. He said no TARP
money.

WILL: Well, he said no TARP money because statutorily TARP is to
be used for financial institution such as Chrysler and General Motors.
It was a breath of fresh air for Geithner to say there is something
the Treasury doesn't have authority to do with the taxpayers' money.
That's progress but 10 percent of the Congress, approximately, comes
from California and they will be heard.

DIONNE: You know, what California really needs is not a bailout
but a constitutional convention. One of the reasons they're in this
fix is because you can't get a budget through without two-thirds of
the votes of the legislature. One-third plus one, in this case the
most conservative members of the legislature can block the usual deal
that you make to solve a problem like this.

WILL: An excellent thing.

DIONNE: And it's a disaster. It's created this problem. Then
you have voters who can go to referendum and vote for programs without
necessarily paying for them and so you have this problem at the heart
of the California budget situation.

WILL: E.J., E.J. lays out the plan for fixing California by
making it easier to raise taxes and transfer wealth from taxpayers to
the public employees unions. That would be the solution that I would
expect the administration ...

BRAZILE: It's drastic cuts in education and health care, laying
off thousands of workers and I think the ...

WILL: Thousands of workers that added to the payroll during this
crisis.
BRAZILE: Of course, turning over undocumented illegal people
over to the federal prison so we are going to have to help California
find a way to close this budget gap. Maybe help them with their
municipal bonds and make sure they can get on the market and get the
best price but ...

STEPHANOPOULOS: So you think they will turn around.

(UNKNOWN): It's a lot of electoral votes.

BROOKS: Once you start there, believe me there are 49 other
states or at least -- 30 some or Democratic states, let's be more
explicit about this. The problem is as George pointed out in a column
way in front of us on this story, spending on the public employees has
been exploding. What is it twice the cost to house an inmate?

And then when you concentrate revenue on getting the top one
percent that gives you incredible volatile revenue streams. But stock
options one year but no stock options the next year and you get these
crashes and if we bailed them out that would be addressing none of the
structural issues.

STEPHANOPOULOS: That may be but one of the suggestions people
have made is that, okay, there should be conditions. I know George
Will wouldn't like them but you should do away with the two-thirds
plus one, you should do away with the constitution ...

WILL: Californians wouldn't like it. This is federalism.
People have a right to the laws they want.

DIONNE: Two-thirds plus one is not a democratic system. It
requires -- it gives a minority the power to write the state budget.
But I think what you're going to see is not a direct bailout of
California. There wasn't enough money put in the stimulus package to
help enough states that are in trouble. If it was in normal times
where one was in trouble he might be able to do a bailout but you have
so many states are facing trouble if they help they'll have to do
something more general. I don't think they can't just help
California.

BROOKS: Gray Davis, we had the last California iteration. Now
we have this one. If we don't ...

DIONNE: And the system in California is broken. Exactly.

STEPHANOPOULOS: Meanwhile, the president does face a real
political problem and a real economic problem. He can't allow
California to go under. So what do they do?

BROOKS: Well, I would hope they would hope they would reduce --
some of the public employee unions that have gotten huge increases
without doing the draconian things that Donna talked about, that's got
to be possible. Because if they kept spending at a reasonable rate
over the past 20 years they wouldn't be having this problem. So there
must be a way to cut and do structural reforms without the equivalent
of closing the Washington Monument.
BRAZILE: This is not just an attack on unions and their pay as
we saw in the whole conversation about General Motors and Chrysler.
This is structural problems that must be addressed and many of these
states are having a hard time selling their bonds on the market. And
I think the federal government maybe with the TARP money, whatever,
can help these states get these bonds on the market to help them with
their little credit crunch.

WILL: Well, good. Let the administration go to Congress and
say, we want a law passed to bail out California. The problem with
this is, generally, it interrupts all the feedback loops by which
people learn. California has to learn. The other 49 states have to
learn. And they are to some extent not mere appendages of the federal
government.

BRAZILE: Who is the image here? The federal government? Who
are they going to learn from, George? We're in a recession and
they're having a hard time getting money and they have all of this --
the needs -- the budget needs but we're in a recession. And that's
money not coming in.

WILL: Donna, if we went back to the Dark Ages, to the spending
levels in California of say 2002 they wouldn't have these problems.

BROOKS: There's one other issue George may not like. Term
limits. If you're only in the legislature for a short period you
don't care about the out years. That's been a big factor here.
Frankly, if we want to reach a compromise I'll give you a short-term
bailout if there is fundamental reform, if Obama leans on them and
they really do fundamental reform. I think most would accept that.

STEPHANOPOULOS: That is actually what happened in New York back
in 1975. The City of New York did and the State of New York made
reforms. You guys can continue this in the green room. All of you
can join in later on abcnews.com and for political updates all week
long follow me on FaceBook and Twitter.